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Foreign Citizens As Members Of Transnational Class Actions, Jay Tidmarsh
Foreign Citizens As Members Of Transnational Class Actions, Jay Tidmarsh
Jay Tidmarsh
This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that foreign citizens whose home forum will not recognize an American class judgment should be excluded from membership. Our analysis begins by establishing that this consensus is seriously flawed and misapprehends the nature of the problem. Using standard tools of economic analysis, we then make two arguments. First, the decision to include or exclude foreign class members should be based upon a comparison of costs and benefits: in particular, the costs generated by foreign …
Procedure, Substance, And Erie, Jay Tidmarsh
Procedure, Substance, And Erie, Jay Tidmarsh
Jay Tidmarsh
This article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process — in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of “procedure” and “substance change with the context — a pillar on which present Erie analysis is based — is wrong. Finally, it suggests a single process-based principle that reconciles all of the Supreme Court’s “procedural …
Indispensable Sovereigns: Pimentel, Abstention, And The Uses Of Rule 19, Katherine J. Florey
Indispensable Sovereigns: Pimentel, Abstention, And The Uses Of Rule 19, Katherine J. Florey
Katherine J. Florey
This Article attempts to fill some of the gap in academic treatment of Rule 19 by considering an important and timely issue in the Rule’s application. It makes the argument that, while Rule 19 was originally intended to facilitate the consolidation of litigation by authorizing mandatory joinder of absent parties, it has evolved in an important subset of cases to serve a nearly opposite purpose. That is, in many cases where a party may be affected by the litigation but cannot be joined because it is a sovereign possessing immunity from suit, courts have developed a near-categorical rule that the …
Erie's Suppressed Premise, Michael S. Green
Erie's Suppressed Premise, Michael S. Green
Michael S. Green
The Erie doctrine is usually understood as a limitation on federal courts’ power. This Article concerns the unexplored role that the Erie doctrine has in limiting the power of state courts. According to Erie Railroad v. Tompkins, a federal court must follow state supreme court decisions when interpreting state law. But at the time that Erie was decided, some state supreme courts were still committed to Swift v. Tyson. They considered the content of their common law to be a factual matter, concerning which federal (and sister state) courts could make an independent judgment. Indeed, the Georgia Supreme Court still …
Horizontal Erie And The Presumption Of Forum Law, Michael S. Green
Horizontal Erie And The Presumption Of Forum Law, Michael S. Green
Michael S. Green
According to Erie Railroad v. Tompkins and its progeny, a federal court interpreting state law must decide as the state’s supreme court would. In this Article, I argue that a state court interpreting the law of a sister state is subject to the same obligation. It must decide as the sister state’s supreme court would. Horizontal Erie is such a plausible idea, one might think it is already established law. But the Supreme Court has in fact given state courts significant freedom to misinterpret sister state law. And state courts have taken advantage of this freedom, by routinely presuming that …